Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2001-402

MARCH TERM, 2002

Craig Kissell

v.

Brattleboro Memorial Hospital and Mount Snow, Ltd.

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APPEALED FROM:

Windham Superior
Court

DOCKET NO. 7-1-00 Wmcv

Trial Judge: John P. Wesley

In the above-entitled cause, the Clerk will enter:

Plaintiff appeals a summary judgment order dismissing his claim for damages against Mt.
Snow, Ltd. for failing to produce certain documents during the pendency of a prior medical
malpractice action against Mt. Snow and others after a 1993 skiing accident at Mt. Snow. We
reverse and remand for further proceedings.

We employ the same summary judgment standard as the trial court when reviewing summary
judgment orders on appeal. O'Donnell v. Bank of Vermont, 166 Vt. 221, 224 (1997). If no genuine
issue of material fact exists and any party is entitled to judgment as a matter of law, summary
judgment is appropriate. V.R.C.P. 56(c)(3); O'Donnell, 166 Vt. at 224. We resolve all doubts
regarding the facts in favor of the party opposing summary judgment when determining whether a
genuine issue of material fact exists for trial. O'Donnell, 166 Vt. at 224.

We set forth many of the facts in this matter in our entry order in plaintiff's prior case against
Mt. Snow, two physicians, and Brattleboro Memorial Hospital. See Kissell v. Haroutunian, No. 99-447 (Vt. Sept. 7, 2000) (mem.). In that order, we explained that plaintiff skied into a tree in the early
afternoon of January 9, 1993. He did not lose consciousness and chose to continue skiing after
speaking with members of the area's ski patrol. He arrived at the base first aid station a short time
later complaining that he felt ill. Plaintiff was taken to a mountainside clinic where two physicians
examined him. He was eventually transported by ambulance to Brattleboro Memorial Hospital, and
then to Dartmouth-Hitchcock Medical Center, where neurosurgeons relieved the pressure on his
brain caused by his injury. Permanent brain damage had already occurred by that time, however.

In August 1993, plaintiff sent a written request addressed to "Mount Snow Medical Records"
seeking "any and all documents and information pertinent to [plaintiff's] physical condition and
treatment in January 1993." Mt. Snow's Skier Education Supervisor, Steve Goldfarb, responded to
plaintiff's request and provided an incident report and a field report relating to the accident.
Goldfarb stated that the two forms were the only ones Mt. Snow possessed with plaintiff's medical
information.

In January 1994, plaintiff sued the two doctors who treated him at the mountainside clinic, as
well as Mt. Snow and Brattleboro Memorial Hospital. Approximately one year later, plaintiff agreed
to dismiss Mt. Snow from the suit prior to trial. (1) Although defendant alleges that plaintiff did not
conduct any discovery from Mt. Snow between the initiation of his lawsuit and the voluntary
dismissal, the record on this point is subject to dispute. A letter from Mt. Snow's Risk Manager to
plaintiff indicates that plaintiff may have sought additional documents during the discovery period
in that prior suit. Plaintiff settled the case against the two doctors after the jury deadlocked following
trial. On January 28, 1998, the court entered judgment in favor of defendants pursuant to the parties'
stipulation.

In September 1998, plaintiff moved for relief from the judgment in favor of the two doctors
under V.R.C.P. 60(b) after discovering a hospital document which was not produced in discovery.
This motion did not mention Mt. Snow. While the motion was pending, and after the judgment had
been final for a little over one year, plaintiff discovered two additional documents from Mt. Snow
that Mt. Snow did not provide previously. Plaintiff supplemented his motion with additional facts
relating to the Mt. Snow documents, which consisted of a report by a member of Mt. Snow's ski
patrol and a witness statement from plaintiff's friend taken at the clinic. The court denied plaintiff's
motion. On appeal, we affirmed the court's decision, concluding that there was little likelihood the
documents would have affected the outcome of the trial against the doctors. Kissell v. Haroutunian,
No. 99-447, at 3.

On January 5, 2000, while plaintiff's appeal in Kissell v. Haroutunian was pending, plaintiff
filed the present action against Mt. Snow and Brattleboro Memorial Hospital. Plaintiff alleged that
the hospital and Mt. Snow negligently or deliberately failed to produce documents during the prior
lawsuit depriving him of a fair and just adjudication of the claims he asserted in that action. The
complaint further contended that defendants' alleged misconduct caused him to dismiss his claims
against the hospital and Mt. Snow and led him to settle with the two doctors for a small fraction of
the value of his case against them. Plaintiff asserted that "[h]ad the Defendants produced the
documents which they negligently or deliberately concealed, Plaintiff would have won a jury verdict
against all defendants for damages reflecting the full consequence of the malpractice of Doctors
Haroutunian and Guinand."

The parties commenced discovery in the new matter in March 2000. In July, they jointly asked
the court to stay discovery pending the outcome of plaintiff's appeal in Kissell v. Haroutunian, which
the court granted. In late October 2000, both the hospital and Mt. Snow moved for summary
judgment. Mt. Snow argued that plaintiff could not maintain an independent action to obtain relief
from the prior judgment. The court granted the motion for summary judgment assuming, but not
deciding, that plaintiff could maintain an independent action. According to the trial court, summary
judgment was proper because collateral estoppel prevented plaintiff from relitigating whether the
defendants' failure to produce documents caused his failure to obtain a judgment against the doctors
because that issue was conclusively decided in the prior action. Regarding plaintiff's claim that he
would not have settled with defendants had he obtained the newly discovered documents during the
prior action, the court concluded that he could have raised that claim in his Rule 60(b) motion and
was therefore precluded by the doctrine of res judicata from asserting that claim in this case.
Plaintiff appealed the court's order with respect to Mt. Snow only to this Court.

Once a judgment is final, a party must look to V.R.C.P. 60(b) for relief from that judgment.
V.R.C.P. 60(b); Godin v. Godin, 168 Vt. 514, 517 (1998). The rule authorizes the court to relieve
a party from a judgment on the basis of "newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under Rule 59(b)" or for an adverse party's
misrepresentation, fraud or other misconduct. V.R.C.P. 60(b)(2) & (3). Motions for relief on both
grounds must be made within one year of the judgment. V.R.C.P. 60(b); Godin, 168 Vt. at 517.

In this case, the court erroneously concluded that plaintiff could have raised his claim against
Mt. Snow in his prior Rule 60 motion. The previous motion did not seek to reopen the judgment in
favor of the Mt. Snow. On the basis of the record before the trial court, it was apparent that the facts
giving rise to plaintiff's claim against Mt. Snow came after the one-year limit for such motions on
the grounds of newly discovered evidence, fraud, misrepresentation, or other misconduct. Absent
additional facts, the record does not support the trial court's conclusion that plaintiff could have
raised his claim within the one-year limit. It was, therefore, error for the court to conclude that res
judicata applied to his claim against Mt. Snow.

We turn now to the main dispute between the parties - whether plaintiff may bring an
independent action to be relieved from the prior judgment in favor of Mt. Snow. Plaintiff correctly
points out that Rule 60(b) does not limit the court's authority to "entertain an independent action to
relieve a party from a judgment . . . or to set aside a judgment for fraud upon the court." V.R.C.P.
60(b). The court's power to set aside judgments, even in the context of an independent action, must
be exercised cautiously because it necessarily involves "an inevitable clash of two competing
principles of judicial administration: the principle of finality and repose of judgments, which is so
fundamental to our system of justice, and the ultimate principle that justice must be done unto the
parties." Levinsky v. State, 146 Vt. 316, 318 (1985). Thus, to maintain an independent action as
contemplated by Rule 60, plaintiff must establish the following elements: (1) the existence of a
judgment which should not, in equity and good conscience, be enforced; (2) plaintiff had a
cognizable cause of action against defendant in the prior action; (3) fraud, accident or mistake
prevented plaintiff from obtaining relief in the prior action; (4) the judgment in favor of defendant
was not due to plaintiff's fault or negligence; and (5) the absence of any adequate remedy at law.
See Godin, 168 Vt. at 521 (setting forth elements of an independent cause of action where a
defendant seeks relief from a prior judgment) (quoting Levinsky, 146 Vt. at 319).

Defendant contends that plaintiff's failure to serve formal discovery on Mt. Snow during the
prior suit should prevent plaintiff from obtaining any further relief. As we noted previously, the
extent of plaintiff's discovery efforts, whether formal or informal, are subject to genuine dispute
based on the record before us. The record shows that plaintiff asked Mt. Snow repeatedly for
documents related to his accident both before and after the suit against Mt. Snow was filed and
dismissed. One of Mt. Snow's own documents suggests that plaintiff inquired about his records
during the discovery phase of the prior case. This genuine dispute about the extent of plaintiff's
efforts to discover relevant information renders summary judgment inappropriate.

We are further persuaded by plaintiff's claim that he was entitled to additional discovery in
this matter prior to the court's entry of summary judgment. The record shows that the parties
engaged in some preliminary discovery, but jointly requested a stay of the schedule pending the
outcome of plaintiff's appeal in the prior case. Within days of our final disposition of that matter,
defendant moved for summary judgment. No further discovery is apparent from the record. The
only clear matter in the record before us is that the material facts regarding Mt. Snow's alleged
withholding of the documents and plaintiff's efforts to obtain them have not yet emerged. Summary
judgment is appropriate only after plaintiff has had an adequate time to discover information relevant
to establish the elements of an independent action under Rule 60. Cf. Bushey v. Allstate Ins. Co.,
164 Vt. 399, 405 (1995) (Rule 56 does not require the court to wait for parties to complete discovery
before entering summary judgment where discovery had produced a substantial amount of
information and party's additional discovery was related to an element the trial court did not need
to address).